20250211_C363718_72_363718.Opn.Pdf

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ANDREW POTTER, UNPUBLISHED

February 11, 2025

Plaintiff-Appellee/Cross-Appellant, 10:03 AM

v No. 363718

Emmet Circuit Court

CITY OF HARBOR SPRINGS, VICTOR LC No. 21-107342-CD

SINADINOSKI, and MATT BUGERA,

Defendants-Appellants/Cross-

Appellees.

Before: BORRELLO, P.J., and REDFORD and PATEL, JJ.

PER CURIAM.

In this interlocutory appeal in a dispute involving the alleged wrongful termination of

plaintiff’s employment with defendant City of Harbor Springs (the city), defendants appeal by

leave granted1 the circuit court’s rulings denying in part defendants’ motion for summary

disposition. Plaintiff also filed a cross appeal. For the reasons set forth in this opinion, we vacate

the circuit court’s orders as explained in further detail below and remand to the circuit court for

further proceedings consistent with this opinion.

I. BACKGROUND

This employment dispute involves claims under the Veterans Preference Act (VPA), MCL

35.401 et seq., and the and Whistleblower’s Protection Act (WPA), MCL 15.361, et seq., arising

out of events that occurred on March 31 and April 1, 2021.

The parties do not dispute that plaintiff is an honorably discharged veteran of the United

States Air Force. Plaintiff was hired by the city in 2018 as assistant to the city manager. When

1

Potter v City of Harbor Springs, unpublished order of the Court of Appeals, entered June 7, 2023

(Docket No. 363718).

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plaintiff was originally hired for this position, Tom Richards was the city manager. Victor

Sinadinoski became the city manager on May 1, 2019.

On March 31, 2021, Sinadinoski and plaintiff discussed potential plans for the Chamber of

Commerce to relocate to a city owned building in Ford Park. Plaintiff was apparently personally

opposed to this plan. According to Sinadinoski, he asked plaintiff for a list of reasons why plaintiff

opposed the plan. Plaintiff testified that he was asked to conduct a “feasibility study” and to create

a “pros and cons report” with respect to the Chamber of Commerce moving into the vacant building

at Ford Park.

Plaintiff, after confirming that there was a “State of Michigan Land and Water

Conservation Grant” placard on the Ford Park building, sent an e-mail to Merrie Carlock at the

Michigan Department of Natural Resources (DNR). In this e-mail, plaintiff asked Carlock whether

leasing the building to the Chamber of Commerce would violate any conditions of the Land and

Water Conservation agreement. Plaintiff also indicated in the e-mail that the city had recently

allowed a commercial barge business, Walstrom Dock and Dredge, to operate from the public boat

ramp in Ford Park. Carlock responded and explained that the proposed lease of the building to the

Chamber of Commerce could be problematic in light of the history of Land and Water

Conservation Fund grants for the site and the associated restrictions. She also asked for more

details about the barge operation, and more e-mails were exchanged.

Later that day, plaintiff informed Sinadinoski about the e-mails with Carlock. Plaintiff told

Sinadinoski that Carlock had indicated that the building could not be leased to the Chamber of

Commerce and that Walstrom Dock and Dredge could no longer operate from Ford Park.

Sinadinoski was surprised and upset. He told plaintiff to cease communications with Carlock and

to forward the e-mails to him.

Sinadinoski concluded that plaintiff’s emails contained false statements, inappropriate

comments, improper disclosures of confidential information, and improper injections of plaintiff’s

“personal agenda.” Sinadinoski decided that he would meet with plaintiff in an attempt to get

plaintiff to “understand his duties and obligations as a city employee and how [Sinadinoski] would

have liked him to handle the situation.” Sinadinoski stated that he did not intend to terminate

plaintiff’s employment over the e-mails.

However, the next morning, April 1, Sinadinoski had a meeting with plaintiff, during which

Sinadinoski verbally terminated plaintiff’s employment. Plaintiff and Sinadinoski gave different

descriptions of what transpired during that meeting. Sinadinoski claimed that he tried to talk to

plaintiff about how the situation regarding the use of the park and the e-mails with Carlock should

have been handled differently and that plaintiff became argumentative, raised his voice, and would

not listen to Sinadinoski or let him speak. Plaintiff claimed that Sinadinoski was the person who

was yelling and raising his voice, and plaintiff stated that he remained calm through the interaction.

Plaintiff further claimed that Sinadinoski consistently interrupted him and would not let him finish

his answers to Sinadinoski’s questions. According to plaintiff, Sinadinoski jumped up from his

chair and “punched the desk . . . in a fit of rage.” Sinadinoski characterized this incident as a “slap

[on] the desk space near [his] keyboard to get [plaintiff’s] attention, like a judge or mayor hitting

a gavel on the desk to get order in the room.”

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The meeting ended with Sinadinoski verbally terminating plaintiff’s employment. The

termination was memorialized in a letter issued the same day. The letter stated in pertinent part:

“This letter is to inform you that your employment with the City of Harbor Springs has been

terminated effective immediately due to unsatisfactory performance and conduct.”

On April 30, 2021, plaintiff sent an email to the city clerk and city attorney stating that

because he was an honorably discharged veteran of the United States military, he was entitled

under the VPA to a hearing before his employment could be terminated. Plaintiff further stated

that Sinadinoski’s termination of plaintiff’s employment violated plaintiff’s rights under the VPA

and that the present communication constituted his official notice to the city.

At issue is MCL 35.402, which provides as follows:

No veteran or other soldier, sailor, marine, nurse or member of women’s

auxiliaries as indicated in the preceding section holding an office or employment in

any public department or public works of the state or any county, city or township

or village of the state, except heads of departments, members of commissions, and

boards and heads of institutions appointed by the governor and officers appointed

directly by the mayor of a city under the provisions of a charter, and first deputies

of such heads of departments, heads of institutions and officers, shall be removed

or suspended, or shall, without his consent, be transferred from such office or

employment except for official misconduct, habitual, serious or willful neglect in

the performance of duty, extortion, conviction of intoxication, conviction of felony,

or incompetency; and such veteran shall not be removed, transferred or suspended

for any cause above enumerated from any office or employment, except after a full

hearing before the governor of the state if a state employee, or before the

prosecuting attorney if a county employee, or before the mayor of any city or the

president of any village, or before the commission of any such city or village

operating under a commission form of government, if an employee of a city or

village, or before the township board if a township employee, and at such hearing

the veteran shall have the right to be present and be represented by counsel and

defend himself against such charges: Provided further, That as a condition

precedent to the removal, transfer, or suspension of such veteran, he shall be

entitled to a notice in writing stating the cause or causes of removal, transfer, or

suspension at least 15 days prior to the hearing above provided for, and such

removal, suspension or transfer shall be made only upon written order of the

governor, the prosecuting attorney, the mayor, commission, or the township board:

Provided, however, That where such veteran has been removed, transferred, or

suspended other than in accordance with the provisions of this act, he shall file a

written protest with the officer whose duty under the provisions of this act it is to

make the removal, transfer, or suspension, within 30 days from the day such veteran

is removed, transferred, or suspended; otherwise the veteran shall be deemed to

have waived the benefits and privileges of this act: Provided, however, Said hearing

shall be held within 30 days of filing such notice: Provided further, That the mayor

of any city or the president of any village or the commission of any such city or

village operating under a commission form of government may refer any protest

where a veteran is removed, transferred, suspended or discharged, to the legal

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department of such city or village for a hearing. The legal department shall act as

a fact finding body and shall have the power to examine witnesses, administer oaths

and do all those things which the mayor could do hereunder: Provided further, That

the findings shall be transmitted to the mayor in writing by the legal department,

whereupon the mayor shall examine the transcript of the hearing and make a

decision based on the transcript thereof: And provided further, That where such

veteran has been reinstated to his employment upon the written order of the

governor of the state if a state employee, the prosecuting attorney if a county

employee, the mayor of any city or the president of any village or the commission

of any such city or village operating under a commission form of government, or a

township board if a township employee, or by an order of any court of competent

jurisdiction, then such veteran shall be entitled to receive compensation for the time

lost from date of such dismissal or suspension to the date of reinstatement at the

same rate of pay received by him at the date of dismissal or suspension. [Emphasis

added.]

Matt Bugera, the city’s mayor, communicated with plaintiff in a letter dated May 11, 2021.

In this correspondence, Bugera affirmed plaintiff’s request for a hearing under the VPA. However,

he decisively clarified that the VPA does “not apply to heads of departments and first deputies of

such department heads.” Moreover, Bugera confirmed that the city had determined plaintiff held

the role of “first deputy” to the city manager based on the clear responsibilities associated with the

assistant to the city manager position. Despite this classification, Bugera made it clear that the city

would grant plaintiff a hearing. He further explained that the city attorney had recused himself

from the VPA hearing, leading Bugera to appoint attorney Michal Bogren as a special assistant

city attorney to conduct the hearing, act as finder of fact, and report his findings to Bugera for a

final decision.

Bogren conducted a hearing, during which both Sinadinoski and plaintiff provided their

testimonies. Each presented a detailed account of the events leading to plaintiff’s termination, as

previously outlined. Sinadinoski stated emphatically that he had “entrusted [plaintiff] with highly

important and sensitive issues” during plaintiff’s tenure. He also confirmed that he had previously

counseled plaintiff against engaging in political advocacy during work hours. Plaintiff

unequivocally denied any prior disciplinary history but acknowledged his failure to prepare the

required written pros and cons report that Sinadinoski had requested. Sinadinoski then articulated

the reasoning behind his decision to terminate plaintiff’s employment:

I would say that Mr. Potter’s behavior and insubordination in my office on that

morning of April 1st was a tipping point in my decision to terminate him from his

employment with the City. His inappropriate e-mail on March 31st combined with

other instances ultimately demonstrates to me his poor performance and conduct

was unsatisfactory. When he refused to listen to me or respect me and my

reasonable request, I realized insubordinate employee with a track record of

unsatisfactory behavior and conduct would no longer be benefit [sic] for the City

as he could not be trusted to faithfully and honestly execute his duties for the City.

Plaintiff testified that the document delineating the duties of the assistant to the city

manager, which was provided to both Bogren and plaintiff, accurately represented his job

responsibilities. These duties included the obligation to “[r]epresent the City Manager in the

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absence of the City Manager.” However, plaintiff acknowledged that he “did not perform all of

those duties” and “likely completed less than half of them.” He also indicated that he had “drafted

several grants for the City and investigated multiple grants for the City,” which facilitated his

acquaintance with Carlock.

Subsequent to the hearing, Bogren prepared written findings of fact. He described

additional evidence presented by the parties, which he considered in reaching his conclusions. This

evidence was appended as exhibits to the findings and included a statement from Richards, the

former city manager, a statement from Patty Sutton, the city clerk, the job description for the

assistant to the city manager position, plaintiff’s written statement, and various other documents

submitted by the city.

In his statement, Richards expressed his belief that the position for which plaintiff was

hired did not encompass responsibilities adequate to qualify him as a “first deputy.” Richards

contradicted the assertion made in Bugera’s letter and characterized plaintiff’s role as that of an

administrative assistant. According to Richards, the city council consistently designated the city

clerk/treasurer as the substitute for the city manager when needed. In fact, the council had

appointed the city clerk/treasurer as the acting city manager following Richards’ retirement.

Furthermore, Richards noted that plaintiff did not supervise any staff members and was not

mandated to take an oath of office.

Sutton’s statement provided in relevant part:

On April l, 2021 Andy went into Victor’s office and closed the door. I heard

voices and just thought it was Andy talking as he tends to talk loud. Then I heard

a bang, like someone smacking the desk which startled me. The next thing I know

Andy comes out and said “Ladies, Victor just fired me[.] [D]o we have any

boxes[?]”

Bogren specifically found that “The duties of the position Assistant to the City Manager at

the City of Harbor Springs are reflected in [the attached job description], although Mr. Potter did

not perform all of those duties”; “Mr. Sinadinoski was dissatisfied with Mr. Potter’s performance

in executing the charge to prepare a list of ‘pros and cons’ of the Chamber’s proposal to lease the

Ford Park Building”; “Mr, Sinadinoski was specifically dissatisfied that Mr. Potter inserted his

personal views of the Chamber’s proposal into his communications with Ms. Carlock and was

more concerned with addressing his personal concerns than he was in carrying out his charge of

preparing a list of ‘pros and cons’ of the Chamber’s proposal”; “Mr. Potter’s attitude toward Mr.

Sinadinoski in the meeting on April 1, 2021 was combative and defiant”; “Mr. Potter was not

amenable to receiving any criticism or counseling from Mr. Sinadinoski, his immediate supervisor,

on April 1,2021”; “Both participants in the meeting were agitated and became angry”; “Based on

the testimony of the participants in the meeting, Mr. Potter was dismissive of Mr. Sinadinoski’s

concerns about the manner in which Mr. Potter executed his charge of preparing a list of ‘pros and

cons’ for the Chamber of Commerce’s proposal”; “Mr. Potter did not fulfill his charge of preparing

a list of ‘pros and cons’ for the Chamber’s proposal”; “The April 1, 2021 meeting concluded by

Mr. Sinadinoski informing Mr. Potter that his employment was terminated”; and “Mr. Sinadinoski

prepared a letter dated April 1, 2021 addressed to Mr. Potter stating that Potter’s employment was

terminated ‘due to unsatisfactory performance and conduct.’ ” In reaching these conclusions,

Bogren noted:

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Mr. Sinadinoski and Mr. Potter have conflicting recollections of what transpired in

that meeting. Each testified the other participant was angry and yelling. The

statement of the City Clerk, Patty Sutton, states that she heard “voices,” and

assumed it was Mr. Potter “as he tends to talk loud.”

Bugera subsequently issued a written decision confirming termination of plaintiff’s

employment. Bugera stated his conclusions and reasoning in relevant part as follows:

Based on the job duties described in Exhibit F to the Findings of Fact, the

testimony of the City Manager and the testimony of Andrew Potter, Mr. Potter was

the first deputy to the City Manager under the VPA. This is reinforced by the

testimony and written statement of Mr. Potter that he contacted the State of

Michigan as part of conducting a “feasibility study” of the Chamber of Commerce’s

proposal to lease the Ford Park Building. Mr. Potter further testified that he had

written several grants for the City. The preparation of a “feasibility study” and

writing grant proposals are significant responsibilities that require the exercise of

discretion in order to carry out the policies established by the City Council. I do

not find Mr. Tom Richards’s opinion that Mr. Potter was “not in any way the ‘First

Deputy’ of the City Manager” to be persuasive. Because Mr. Potter was the first

deputy to the City Manager, he is not covered by the VPA and could be terminated

as an at-will employee.

However, even if it is assumed that Mr. Potter was not the first deputy of

the City Manager, after reviewing the hearing transcript and the Findings of Fact

with exhibits it is my decision that the termination of Andrew Potter’s employment

with the City of Harbor Springs is confirmed. Mr. Potter was terminated for

behavior that constituted official misconduct and serious neglect in the performance

of his duties. His interactions with his direct supervisor, City Manager Victor

Sinadinoski, on April 1, 2021 were confrontational and disrespectful. Mr. Potter

refused to accept any criticism or counseling from the City Manager. The City

Manager attempted to explain to Mr. Potter why the City Manager was dissatisfied

with Mr. Potter’s performance of the charge to prepare a report or list of “pros and

cons” for the Chamber of Commerce’s proposal to lease the Ford Park Building.

Regardless of whether Mr. Potter disagreed with the City Manager’s criticism, his

response to his direct supervisor constituted official misconduct and serious neglect

in the performance of his duties.

Plaintiff filed a complaint in the circuit court on June 29, 2021, against the city,

Sinadinoski, and Bugera. Plaintiff filed a first amended complaint against the same defendants on

August 12, 2021. In his first amended complaint, plaintiff claimed that defendants had committed

violations of the VPA and WPA, as well as breach of contract. Plaintiff alleged in Count 1 that

defendants had violated the VPA by purporting to terminate his employment on April 1, 2021,

before first providing plaintiff with formal written notice of the charges and a hearing. Plaintiff

further alleged that the VPA protected him from being terminated from his employment unless it

was for certain enumerated causes, of which there was no evidence in this case. In Count 2,

plaintiff alleged that defendants violated the WPA by retaliating against him based on his reports

of potential violations of law and other protected activities. Finally, plaintiff alleged in Count 3

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that defendants had breached the parties’ employment contract by failing to comply with

defendants’ obligations under the city’s administrative hearing process as well as the VPA and

WPA.

The parties filed competing motions for summary disposition. Following oral argument,

the circuit court issued a written opinion. First, the circuit court denied the motion for summary

disposition regarding the VPA claim. The court characterized plaintiff’s claim as an alleged

violation of due process premised on the failure to adhere to the requirements of the VPA and

stated that plaintiff “does not seek an appeal of the final decision.” The court concluded that

plaintiff was not a “first deputy” outside the protections of the VPA based on the statements of

Richard in his affidavit, which the circuit court found “credible,” and the formal job description

for the assistant to the city manager position. The circuit court further determined that summary

disposition was not appropriate in favor of either party because “[t]he parties have differing

accounts of what took place in the meeting and the basis for termination” and “in reviewing the

evidence in a light most favorable to the non-moving party, there are facts by which reasonable

minds could differ.”

Regarding the WPA claim, the circuit court granted summary disposition in favor of

defendants to the extent that the court concluded plaintiff’s emails to Carlock did not constitute

“protected activity” because they contained inaccurate information about the barge operation, there

was no evidence that the barge operation violated any law, and the Chamber of Commerce had not

actually moved into the city owned building. The circuit court therefore found that the e-mails

“boil[ed] down to a request for information regarding the use of grant funds,” which did “not rise

to the level of ‘reporting a suspected violation . . . of law.’ ” However, with respect to plaintiff’s

argument that his demands under the VPA also caused defendants to retaliate against him and

discharge him, the court ruled: “A decision on this issue rests on the outcome of the VPA claim.

Therefore, the Court will defer decision on this issue until the VPA claim is resolved.”

Finally, the circuit court granted summary disposition in favor of defendants on the breach

of contract claim. This ruling is not challenged on appeal and will not be discussed further. The

circuit court subsequently entered an order memorializing the rulings in its written opinion.

Plaintiff moved for leave to amend his complaint to add federal constitutional claims, and

both parties filed motions for reconsideration. On reconsideration, the circuit court affirmed its

rulings on the VPA claim, but provided the following explanation of its reasoning:

Plaintiff and Defendant both request Reconsideration. The Court has

granted this request in order to provide additional clarity on the issues, however the

Court’s prior decision regarding summary disposition does not change.

The VPA provides procedural requirements prior to terminating a veteran

who falls within the purview of the Act. An aggrieved party can petition the Circuit

Court for relief relating to their discipline or termination. If a party is entitled to

protection under the VPA, due process requires adherence to the statutory

requirements. . . . A party can also appeal the final administrative decision alleging

that the termination decision was not supported by competent, material and

substantial evidence on the whole record. . . .

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In this case, Plaintiff alleges that Defendants violated his due process by

failing to adhere to the requirements of the VPA. Plaintiff argues that there are

genuine issues of material fact regarding whether the Defendants adhered to the

procedural requirements or whether the process was a “sham.” He does not seek

an appeal of the final decision because he argues that the decision is essentially

meaningless due to the due process violations.

Defendant first argues that the Court improperly found that Plaintiff was

subject to the VPA. The underlying facts regarding whether the VPA applies to

Plaintiff were not in dispute. Therefore, the Court properly determined that the

VPA applied as a matter of law.

Defendant next argues that the Court used the wrong standard in denying

his motion for summary disposition. Defendant argues that the Court should have

used the “competent, material and substantial evidence” standard. However, that

standard is used when reviewing the decision to terminate Plaintiff not when

reviewing due process claims. Therefore it would have been error for the Court to

review the findings with that standard.

Defendant’s third argument was that the due process provisions were not

applicable to Plaintiff because he was terminated for official misconduct and

serious neglect in the performance of duty. This is a two-part analysis: 1) is Plaintiff

a public official; and 2) if yes, was there official misconduct and serious neglect in

the performance of duties? Because there is a genuine issue of material fact in this

regard, summary disposition in favor of either party is not appropriate.

The circuit court declined to reconsider its decision regarding the claim under the WPA,

indicating that there was no substantive basis for altering its ruling. Furthermore, the court denied

plaintiff’s motion for leave to amend the complaint, citing that the request was excessively delayed

and ultimately futile. The court emphasized that “the plaintiff has a due process argument under

the VPA and that there are remedies available to him under the VPA.” The court concluded that

permitting the plaintiff to pursue a federal due process claim would undermine the remedies

established by the VPA. Subsequently, this appeal was filed.

II. STANDARD OF REVIEW

This Court reviews de novo a circuit court’s ruling on a motion for summary disposition,

Vayda v Lake Co, 321 Mich App 686, 692; 909 NW2d 874 (2017), and this Court reviews for an

abuse of discretion a circuit’s decision on a motion for reconsideration, In re Estate of Moukalled,

269 Mich App 708, 713; 714 NW2d 400 (2006). “A trial court abuses its discretion if it chooses

an outcome outside the range of principled outcomes,” Tripp v Baker, 346 Mich App 257, 274; 12

NW3d 45 (2023) (quotation marks and citation omitted), and a court necessarily abuses its

discretion if its ruling is based on an erroneous application or interpretation of law. Gay v Select

Specialty Hosp, 295 Mich App 284, 291-292; 813 NW2d 354 (2012).

Summary disposition under MCR 2.116(C)(8) is properly granted if the “opposing party

has failed to state a claim on which relief can be granted.” When deciding a motion under MCR

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2.116(C)(8), a trial court must consider only the pleadings and accept all factual allegations as true.

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “A motion

under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no

factual development could possibly justify recovery.” Id.

Summary disposition under MCR 2.116(C)(10) is properly granted if “[e]xcept as to the

amount of damages, there is no genuine issue as to any material fact, and the moving party is

entitled to judgment or partial judgment as a matter of law.” A trial court “must consider all

evidence submitted by the parties in the light most favorable to the party opposing the motion”

and grant the motion only if “there is no genuine issue of material fact.” El-Khalil, 504 Mich at

160. “A genuine issue of material fact exists when the record leaves open an issue upon which

reasonable minds might differ.” Id. (quotation marks and citation omitted).

A circuit court reviewing a final termination decision under the VPA is limited to reviewing

whether the decision “was supported by competent, material, and substantial evidence.” In re

Grant, 250 Mich App 13, 18; 645 NW2d 79 (2002). This Court has explained this standard of

review as follows:

In applying the competent, material, and substantial evidence test, the

circuit court must review the entire record, not just those portions supporting the

lower tribunal’s findings. Substantial evidence is any evidence that reasonable

minds would accept as sufficient to support the decision; it is more than a mere

scintilla of evidence but may be less than a preponderance of the evidence. If there

is sufficient evidence, the circuit court may not substitute its discretion for that of

the lower tribunal, even if the court might have reached a different result. Further,

the tribunal’s findings of fact are afforded deference. This is especially true with

respect to witness credibility and evidentiary questions. [Id. at 18-19 (citations

omitted).]

In turn, this Court’s

review of the circuit court’s decision is limited to determining whether the court

“applied correct legal principles and whether it misapprehended or grossly

misapplied the substantial evidence test to the agency’s factual findings.” In other

words, this Court reviews the circuit court’s decision for clear error. A decision is

clearly erroneous when, “on review of the whole record, this Court is left with the

definite and firm conviction that a mistake has been made.” [Id. at 18 (citations

omitted).]

The initial question of whether a particular veteran comes within the protection of the VPA

and whether the VPA applies under the factual circumstances is a judicial question, properly

reserved to the court to resolve. DeGraaf v City of Allegan, 91 Mich App 266, 270-271; 283

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NW2d 719 (1979).2 “It is only where the act is found to apply that the court would be limited to

a review function and thus the record made in the administrative setting.” DeGraaf, 91 Mich App

at 271. Furthermore, although the circuit court is limited to a “review function” to determine

whether competent, material, and substantial record evidence supported the termination of the

plaintiff’s employment in situations where the procedures in the VPA are followed and a proper

decision to review has been rendered by the employer, the preliminary question whether the

procedures specified by the VPA were violated is also a preliminary issue to be resolved by the

court. Egan v City of Detroit, 150 Mich App 14, 20; 387 NW2d 861 (1986); see also In re Grant,

250 Mich App at 14-17 (reviewing the issue whether the defendant employer complied with the

procedural requirements of the VPA de novo “to the extent that resolution of [the] matter require[d]

that [the Court] interpret the provisions of the VPA”).

This Court reviews de novo the circuit court’s decisions on matters of law, including the

circuit court’s interpretation and application of the VPA and other statutory provisions. In re

Grant, 250 Mich App at 14-15; Leelanau Co Sheriff v Kiessel, 297 Mich App 285, 292; 824 NW2d

576 (2012). To the extent factual findings are necessary to determine whether a plaintiff comes

within the protections of the VPA, this Court reviews the circuit court’s factual findings for clear

error. DeGraaf, 91 Mich App at 271-272. However, in the present case, the circuit court’s decision

was made in the context of resolving a motion for summary disposition and it therefore was

precluded from making any findings of fact at this juncture. Patrick v Turkelson, 322 Mich App

595, 605-606; 913 NW2d 369 (2018) (“[I]t is well settled that the circuit court may not weigh the

evidence or make determinations of credibility when deciding a motion for summary disposition.

Moreover, a court may not make findings of fact; if the evidence before it is conflicting, summary

disposition is improper.”) (quotation marks and citations omitted; alteration in original).

III. ANALYSIS

This Court has explained the general nature of the VPA as follows:

“The VPA was enacted for the purpose of discharging, in a measure, the debt of

gratitude the public owes to veterans who have served in the armed services in time

of war, by granting them a preference in original employment and retention thereof

in public service.” Sherrod v Detroit, 244 Mich App 516, 523; 625 NW2d 437

(2001) (quotation marks and citation omitted). The VPA “entitles a veteran to

notice and a hearing before his employer may take any action against him with

respect to his employment” and “converts at-will public employment positions into

ones that are terminable only for just cause.” Id. Because the conversion of at-will

public employment into just-cause employment gives a veteran a property interest

in continuing such employment once it is secured, failure to comply with the

procedural requirements of the VPA may support a due-process claim. Id. Further,

failing to provide notice and a hearing in violation of the VPA subjects the offender

2

Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),

they nevertheless can be considered persuasive authority. Estate of Carlson v Southwest Mich

Emergency Servs., P.C., 338 Mich App 678, 695; 980 NW2d 785 (2021).

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to criminal prosecution. Jackson v Detroit Police Chief, 201 Mich App 173, 177;

506 NW2d 251 (1993); MCL 35.403. [Vayda, 321 Mich App at 693.]

The first question is whether the VPA applies to plaintiff. Defendants argue that plaintiff

could not claim the protections of the VPA because he was a “first deputy” to the city manager.

Under MCL 35.402, “No veteran[3] . . . holding an office or employment in any public

department or public works of . . . any . . . city . . ., except heads of departments, members of

commissions, and boards and heads of institutions appointed by the governor and officers

appointed directly by the mayor of a city under the provisions of a charter, and first deputies of

such heads of departments, heads of institutions and officers, shall be removed . . . except for

official misconduct, habitual, serious or willful neglect in the performance of duty, extortion,

conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be

removed . . . for any cause above enumerated from any office or employment, except after a full

hearing . . . before the mayor of any city . . . or before the commission of any such city . . .

operating under a commission form of government, if an employee of a city . . ., and at such

hearing the veteran shall have the right to be present and be represented by counsel and defend

himself against such charges . . . .” (Emphasis added.) Hence, “[t]he only veterans employed by

state and local governments who are not protected by the VPA are department heads, members of

commissions and boards, heads of institutions appointed by the governor, officers appointed by a

city’s mayor under the city’s charter, and first deputies of such people.” Jackson, 201 Mich App

at 175 (emphasis added).

The parties in this case disagreed regarding the circuit court’s role in assessing whether

plaintiff qualified as a first deputy and thus fell outside the protections of the VPA. Defendants

argued that the circuit court’s responsibility was merely to review the mayor’s determination

through the lens of the substantial evidence test. However, established jurisprudence from this

Court clearly indicates that this preliminary issue should be determined directly by the court,

without granting the same level of deference to the public body’s decision that is typically afforded

under the substantial evidence test. This approach not only upholds the integrity of the judicial

process but also ensures a fair evaluation of the plaintiff’s qualifications.

In DeGraaf, 91 Mich App at 267, this Court addressed the nature of “the circuit court’s

role in a suit involving an alleged violation of the Veterans Preference Act.” The plaintiff in that

case had been a part-time police officer for the defendant city. Id. at 267. After the plaintiff’s last

day of employment, he requested and was granted a VPA hearing, and the city council concluded

that the plaintiff was not entitled to the protections of the act. Id. at 268. The plaintiff filed an

action in the circuit court seeking review of the city council’s decision. Id. The circuit court

determined that before it could review the VPA hearing, it was first required to decide whether the

plaintiff had been entitled to the hearing. Id. After taking testimony on the matter, the circuit court

found that the plaintiff had quit voluntarily and had not been fired. Id. The circuit court dismissed

3

For purposes of the VPA, a “veteran” is “an individual who . . . [i]s a veteran as defined in . . .

MCL 35.61” and who “[w]as honorably discharged.” MCL 35.401(2). “Veteran” is defined in

MCL 35.61 to mean “an individual who served in the United States Armed Forces, including the

reserve components, and was discharged or released under conditions other than dishonorable.”

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the case after concluding that a veteran who voluntarily left employment did not have any rights

under the VPA. Id.

On appeal, this Court agreed that “[f]rom the language used [in MCL 35.402,] it is implicit

that a veteran who quits his employment is not entitled to a hearing under this section.” Id. at 269.

This Court then addressed the second question whether the circuit court was “limited to the record

made before the hearing body” or whether it could instead “take evidence and make findings of

fact concerning the circumstances surrounding the termination of employment and, thus, whether

plaintiff was entitled to a hearing in the first place[.]” Id. at 268-269, 270. This Court approved

the circuit court’s approach, reasoning as follows:

The questions of whether the act applies to a veteran who voluntarily leaves his job

and whether the plaintiff here did so are judicial questions. There is nothing to

prevent the circuit court from determining whether the act applies to the facts as it

finds them. It is only where the act is found to apply that the court would be limited

to a review function and thus the record made in the administrative setting. The

court did not err in reserving unto itself the determination of the act’s applicability,

the question being a purely judicial one. [Id. at 270-271 (emphasis added).]

This Court then affirmed the circuit court because, based on the testimony taken by the

circuit court, the circuit court’s factual finding that the plaintiff had voluntarily quit his job was

not clearly erroneous and the plaintiff was therefore not entitled to a VPA hearing. Id. at 271-272.

Similarly, here, the circuit court did not err by determining that it must address the

threshold question whether the VPA applied to plaintiff, and, contrary to defendants’ contention,

the circuit court was not limited with respect to this particular inquiry solely to reviewing the

record created in the VPA hearing process. Id. at 270-271. The circuit court also was not limited

in this inquiry to reviewing the matter under the substantial evidence test. Id.; Egan, 150 Mich

App at 20.

We conclude it was not erroneous for the circuit court to recognize the necessity of

addressing the question whether the VPA applied. However, there was conflicting evidence on

the issue of whether or not plaintiff was a “first deputy.”

As an initial matter, ascertaining the meaning of the term “first deputies” for purposes of

MCL 35.402 presents an issue of statutory interpretation. Statutory interpretation is an issue of

law. Leelanau Co Sheriff, 297 Mich App at 292. This Court “give[s] every word or phrase of a

statute its plain and ordinary meaning unless a statutory term has a special, technical meaning or

is defined by the statute itself.” Vayda, 321 Mich App at 697.

There is no definition of “first deputies” within MCL 35.402 or the other provisions of the

VPA. In Jackson, 201 Mich App at 175, this Court stated that a police department commander

was not a first deputy of the police chief. In Cremer v Bd of Rd Comm’rs of Alger Co, 325 Mich

27, 32; 37 NW2d 699 (1949), our Supreme Court held that the plaintiff employee was not a first

deputy under the VPA because, although he was a foreman, he was “one of several foremen”

employed by the defendant board of county road commissioners and had never been designated as

a head of department of first deputy of the head of a department. This Court has also held that by

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limiting the exception in the VPA to “first deputies,” the Legislature implied that other deputies

are still protected by the VPA. See Leelanau Co Sheriff, 297 Mich App at 294-295 (specifically

addressing deputy sheriffs). “[I]n the absence of a statutory definition or a special, technical

meaning, [this Court] may consult a dictionary to ascertain the plain and ordinary meaning of a

statutory term.” Vayda, 321 Mich App at 697. A deputy is a “person appointed or delegated to

act as a substitute for another, esp. for an official.” Black’s Law Dictionary (12th ed).

Here, there was conflicting evidence on the precise nature of plaintiff’s job duties and

responsibilities as assistant to the city manager. There was evidence that plaintiff’s essential job

duties included representing the city manager when the city manager was absent, and there was

evidence that Sinadinoski entrusted plaintiff with sensitive matters. There was also evidence that

Richards considered plaintiff’s position to be essentially clerical in nature and that Richards did

not believe plaintiff’s position included responsibilities equivalent to a first deputy. According to

Richards, it was the consistent practice of the city council to designate the city clerk/treasurer as

the substitute for the city manager when necessary, and the council had actually designated the

city clerk/treasurer to be the substitute city manager when Richards retired. Richards also

indicated that plaintiff did not supervise any staff and was not required to take an oath of office.

Without resolving these factual disputes, it is not possible to determine the degree to which

plaintiff could be considered a deputy of the city manager, much less the first deputy. Thus, it is

not possible to resolve this question at this stage because doing so would require impermissible

fact finding by the court on summary disposition. Patrick, 322 Mich App at 605-606. The circuit

court in the present case concluded that plaintiff was not a “first deputy” by making fact finding

and credibility determinations, basing its decision primarily on its finding that the opinions of

Richards were credible. The trial court’s conclusion in this respect was therefore erroneous. Id.

However, even assuming without deciding that the VPA applied, the next question

becomes whether the VPA was violated. Egan, 150 Mich App at 20; In re Grant, 250 Mich App

at 15, 18 ( stating that the “first issues to be resolved in this matter are whether defendant complied

with the procedural requirements of the VPA in discharging plaintiff and, if not, what remedies

are available to plaintiff as a result of that failure,” and further stating that the next consideration

was “whether the township board’s decision to terminate plaintiff was supported by competent,

material, and substantial evidence”).

The circuit court recognized that this was a distinct issue from the issue whether the final

termination decision was justified, characterizing plaintiff’s claim as an allegation that his right to

due process was violated by defendants’ failure to abide by the procedural requirements of the

VPA. Although plaintiff’s first amended complaint did not explicitly refer to his due-process

rights, the “failure of a defendant to comply with the procedures contained in the VPA may support

a due process claim.” Sherrod, 244 Mich App at 523. Plaintiff clearly alleged that the procedures

of the VPA had been violated by defendants. Thus, the circuit court’s characterization was

supported by the factual and procedural history of the case.

This type of due-process claim “depends on [plaintiff] having a property right in continued

employment.” Id. This Court has further explained:

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The VPA is in the nature of civil service law and because it converts at-will public

employment into just-cause employment, it grant[s] the plaintiff a property right in

continued employment. Once a state legislature confers a property interest in public

employment, the employer may not deprive the employee of the interest without

“appropriate procedural safeguards.” Generally, notice and the opportunity for a

hearing must precede the deprivation of the property interest. However, the

pretermination hearing, though necessary, need not be elaborate, and something

less than a full evidentiary hearing is sufficient. [Id. at 523-524 (citations omitted).]

Here, it was undisputed that plaintiff was given both an oral and written indication that his

employment was terminated on April 1, 2021, before he received any type of hearing under the

VPA. Thus, there is no question of material fact that the VPA was violated. In re Grant, 250

Mich App at 15-17 (“In this case, it is undisputed that plaintiff was never afforded such notice and

was removed before a hearing before defendant’s township board, in clear violation of the quoted

statutory language [from MCL 35.402] . . . we conclude that defendant violated the VPA when it

failed to afford plaintiff a full hearing before discharge.”).

However, the VPA provides only limited relief for its violation. Id. at 17. A “violation of

the VPA may be a criminal misdemeanor subject to a fine or imprisonment.” Id., citing MCL

35.403.

“[T]he remedy the VPA provides for a violation of the right to notice and a hearing

is not automatic reinstatement with back pay. Because plaintiff was demoted

without a hearing, he was required to file a written protest with the mayor or he

would be deemed to have waived the protections of the VPA. MCL 35.402[ ]. If

plaintiff filed such a protest, the mayor would be required to conduct a hearing, or

refer the protest to the city’s legal department to conduct a hearing. Id. Plaintiff

would be entitled to back pay only if the mayor found plaintiff’s allegations to be

true and determined that he should be reinstated.” [In re Grant, 250 Mich App at

17, quoting Jackson, 201 Mich App at 177 (alterations in original).]

Here, plaintiff asserted his rights under the VPA after his termination and received a

hearing. Contrary to plaintiff’s assertions, the hearing was not required to be elaborate or

equivalent to a full evidentiary hearing. Sherrod, 244 Mich App at 524. The ultimate question

thus becomes whether plaintiff’s termination was justified. In re Grant, 250 Mich App at 17. This

Court has explained:

MCL 35.402[ ] entitles veterans removed from public employment to back pay only

in situations where they are reinstated. We also are reluctant to award back pay in

situations where a discharge is substantially proper but procedurally deficient.

Because defendants discharged plaintiff for cause, he suffered no economic loss.

An award of back pay would serve only to penalize defendants. [In re Grant, 250

Mich App at 17 (quotation marks and citation omitted; alteration in original).]

This Court’s decision in In re Grant indicates that the question whether plaintiff’s

discharge was substantially proper is still to be reviewed by the circuit court under the substantial

evidence test even though the claim has been brought more in the nature of a challenge to the

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defendant’s failure to properly follow the procedural requirements of the VPA than a typical appeal

of the termination decision per se. In re Grant, 250 Mich App at 18 (stating that the proper standard

of review to be applied by the circuit court with respect to the public employer’s decision to

terminate the plaintiff veteran’s employment is whether the decision was “supported by competent,

material, and substantial evidence”). The fundamental question in this context pertains to the

justification of plaintiff’s discharge. This inquiry necessitates an assessment that affords

appropriate deference to the decisions made by the terminating public body, in accordance with

the substantial evidence test. It is imperative that this evaluation reflects a balanced consideration

of all relevant factors involved. This Court, in turn, reviews the circuit court’s decision to

determine “whether the court ‘applied correct legal principles and whether it misapprehended or

grossly misapplied the substantial evidence test to the agency’s factual findings.’ ” Id. (citation

omitted).

Here, the circuit court expressly declined to apply this test and therefore erred as a matter

of law. Id. Because the circuit court’s decision was based on fundamental misunderstandings of

the legal framework, impermissible judicial fact finding on summary disposition, and its failure to

properly apply the substantial evidence test, we vacate the circuit court’s rulings regarding the

VPA. Id.; Patrick, 322 Mich App at 605-606.

Turning to the WPA claim, MCL 15.362 provides that an “employer shall not discharge,

threaten, or otherwise discriminate against an employee regarding the employee’s compensation,

terms, conditions, location, or privileges of employment because the employee, or a person acting

on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a

suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a

political subdivision of this state, or the United States to a public body, unless the employee knows

that the report is false, or because an employee is requested by a public body to participate in an

investigation, hearing, or inquiry held by that public body, or a court action.” “To establish a

prima facie case under this statute, a plaintiff must show that (1) the plaintiff was engaged in

protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against,

and (3) a causal connection exists between the protected activity and the discharge or adverse

employment action.” West v Gen Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003).

Here, the circuit court provided the following analysis regarding its decision to grant in

part and reserve decision in part on the summary disposition motion with respect to the WPA

claim:

The first issue to address is whether Plaintiff was engaged in a protected

activity. “An employee is engaged in protected activity under the WPA who has

reported or is about to report, a suspected violation of law to a public body.”

[Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 610; 566 NW2d 571

(1997)]. The facts of the alleged reporting are not disputed. Plaintiff and Carlock

exchanged a total of four emails on March 31, 2021 between 11:28am and 2:47pm.

(See attached emails).

Plaintiff argues that he was engaged in a protected activity - namely that on

March 30, [sic] 2021, he reported to Carlock, a DNR employee, that the Walstrom

Dock and Dredge commercial barge at the Park was a violation or suspected

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violation of law which he believed involved the misuse or misappropriation of

public resources, funds and/or parkland for inappropriate commercial use of public

property by Walstrom Dock and Dredge and also that the proposed use by the

Chamber would similarly violate the law. He further argues that additional

retaliation occurred after he invoked his rights under the VPA on April 30, 2021,

and in the ensuing weeks when he objected to the hearing process as a violation of

his due process rights.

In reviewing the evidence in a light most favorable to the Plaintiff, the

evidence does not support a finding that Plaintiff was engaged in “protected

activity.” First, there has to be a suspected violation to report. Plaintiff’s initial

email contains inaccurate information regarding the Walstrom barge operating on

city owned property. In fact, Plaintiff acknowledges that in his follow-up email at

1:35pm to Carlock. Moreover, there has been no evidence presented that the City

was violating the terms of the grant due to Walstrom’s activities and/or that the City

was aware of same and failed to take action.

Further, Plaintiff testified that he sent the initial email out of due diligence

to ascertain if the Chamber could move into the existing building at Ford Park. He

never testified that he intended to report a violation of law to the DNR. Rather he

testified, “So therefore, by me contacting the state, and I didn’t do it intentionally,

I mean I didn’t do it to embarrass anybody, it was just part of my due diligence, it

was just part of my job.”

The purpose of the WBA [sic] is to alleviate “inability to combat corruption

or criminally irresponsible behavior in the conduct of government or large

business.” In this case, if one omits the reference to the Walstrom barge and the

Chamber negotiations, as well as Plaintiff’s own personal opinion, his email boils

down to a request for information regarding the use of grant funds. Such a request

does not rise to the level of “reporting a suspected violation.” of law.” [sic]

Plaintiff’s emails do not fall within protected activity as contemplated by the WPA.

Plaintiff also argues that his demands under the VPA following this meeting

contributed to the retaliation against him and ultimately his discharge. A decision

on this issue rests on the outcome of the VPA claim. Therefore, the Court will defer

decision on this issue until the VPA claim is resolved. [Some citations omitted.]

As an initial matter, the circuit court’s ruling that plaintiff was not engaged in protected

reporting activity while communicating with Carlock appears to be based on the court’s assessment

of what it believed to be plaintiff’s motivations underlying his communications. However, “a

plaintiff’s motivation is not relevant to the issue whether a plaintiff has engaged in protected

activity [for purposes of the WPA] and . . . proof of primary motivation is not a prerequisite to

bringing a claim.” Whitman v City of Burton, 493 Mich 303, 306; 831 NW2d 223 (2013). “MCL

15.362 does not address an employee’s ‘primary motivation,’ nor does the statute’s plain language

suggest or imply that any motivation must be proved as a prerequisite for bringing a claim.” Id. at

313.

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Moreover, the circuit court’s analysis regarding the e-mails is based on judicial fact finding.

The e-mails, which were attached to plaintiff’s first amended complaint, indicate that plaintiff first

contended that the city was allowing the barge operation to use “the public boat ramp in Ford Park”

and then backtracked in a subsequent e-mail by indicating that the barge operation was not using

the city’s “docks” and further explaining the temporary nature of the barge operation’s presence.

Carlock’s response to that email seemed to indicate that she still thought the barge operation was

at least potentially problematic because it may still be considered a “conversion”4 situation. With

respect to the Chamber of Commerce, it appears that both plaintiff and Carlock believed it would

be legally impermissible for the Chamber of Commerce to lease the building at issue.

The circuit court, on summary disposition, engaged in an assessment of whether plaintiff

and Carlock were correct in their beliefs. Such assessment was not based on any legal authority

regarding the uses of the park docks and building and not based on any requirement under the

WPA that a plaintiff’s assessment of the legality of the conduct reported must actually be correct

as opposed to merely not being knowingly false. See MCL 15.362. The circuit court’s assessment

attempted to resolve the factual ambiguities that appear in the email conversation, which is

improper on summary disposition. Patrick, 322 Mich App at 605-606. The trial court’s ruling in

this respect is therefore vacated. Vayda, 321 Mich App at 692.

The remainder of the circuit court’s analysis under the WPA flows from an erroneous

understanding and application of the VPA, as did its decision on plaintiff’s motion for leave to

amend the complaint. We therefore vacate both of these rulings as well5 so the trial court may

address the issues in the first instance under the proper legal framework. Id.; see also Jawad A

Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 210; 920 NW2d 148 (2018)

We vacate the rulings challenged on appeal as stated in this opinion. Our decision does

not have any effect on the circuit court’s ruling regarding the breach-of-contract claim because

that claim was not challenged on appeal. We remand this matter for further proceedings not

inconsistent with this opinion. We do not retain jurisdiction. No costs are awarded. MCR

7.219(A).

/s/ Stephen L. Borrello

/s/ James Robert Redford

/s/ Sima G. Patel

4

It appears from the e-mails that Carlock referred to uses that were inconsistent with the conditions

imposed on Land and Water encumbered properties as causing “conversions” of the property that

would interfere with future applications for grants.

5

Although a trial court’s ruling on a motion for leave to amend is reviewed for an abuse of

discretion, a court necessarily abuses its discretion if its ruling is based on an error of law. Jawad

A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 208; 920 NW2d 148 (2018).

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